John Franich, by George Franich, His Guardian, Ad Litem v. Great Northern Railway Company, a Corporation

Franich, a minor suing by his guardian ad litem, appeals from a judgment of the District Court in a judge-tried diversity suit removed from a district court of Montana, holding the appellee Railway not liable to him for injuries received while playing in the Railway’s siding adjacent to its railway tracks near the city of Butte, Montana.

The injury occurred when Franich, then about five years of age, while walking on parallel railroad rails stored in the siding for use in repairs to the Railway’s tracks, slipped and fell so that his left foot caught between the rails and his left fibula and tibia were broken.

The pertinent portions of Franich’s statement of points on appeal are that the court erred in holding and deciding that the rails upon which plaintiff slipped and fell were piled at a height no greater than similar rails used as a part of defendant’s railroad track; and that there was no negligence on the part of the railway company in piling the rails at that place or in the manner of piling them; and in not holding and finding that the rails as- piled on defendant’s property constituted an attractive nuisance.

There is no merit to the contention that the evidence did not…

(dissenting).

The appellant, at the time of his injury, was about five years old. He and a playmate of three or four years were playing in an unenclosed and unguarded railroad lot where railroad equipment of various kinds was stored. The lot was not merely an ordinary siding upon which replacement rails were placed, as might be thought from the statement of fact in the majority opinion. It was, in fact, an unenclosed railroad warehouse. Among the material stored in it were two or more rails slightly raised from the ground by cross timbers. The rails *601 were placed parallel and quite close together, though not touching. While walking along one of these rails, young Franich’s left foot slipped from the rail and went between the two rails to the ground causing him to topple over. Two lower leg bones were broken.

The law of the state of Montana applies. The Montana Supreme Court, in Nichols v. Consolidated Dairies of Lake County, 125 Mont. 460 , 239 P.2d 740, 742 (1952), held that the requirements for recovery under the attractive nuisance theory are correctly set out in Section 339 of the Restatement of Torts.

It is recited in Section 339 that

The evidence was clear and not…

260 F.2d 599 John FRANICH, by George Franich, His Guardian, Ad Litem, Appellant, v. GREAT NORTHERN RAILWAY COMPANY, a Corporation, Appellee. No. 15469. United States Court of Appeals Ninth Circuit. Oct. 22, 1958, As Amended Oct. 28, 29, 1958, Rehearing Denied Nov. 25, 1958. Joseph P. Monaghan, Butte, Mont., for appellant. Weir, Gough & Matson, Edwin S. Booth, Helena, Mont., H. D. Carmichael, Butte, Mont., J. J. Burke, Jr., Helena, Mont., for appellee. Before STEPHENS, Chief Judge, DENMAN, Senior Circuit Judge, and POPE, Circuit Judge. DENMAN, Senior Circuit Judge. 1 Franich, a minor suing by his guardian ad litem, appeals from a judgment of the District Court in a judge-tried diversity suit removed from a district court of Montana, holding the appellee Railway not liable to him for injuries received while playing in the Railway's siding adjacent to its railway tracks near the city of Butte, Montana. 2 The injury occurred when Franich, then about five years of age, while walking on parallel railroad rails stored in the siding for use in repairs to the Railway's tracks, slipped and fell so that his left foot caught between the rails and his left fibula and tibia were broken. 3…